England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT

		Royal Courts of Justice Strand London WC2A 2LL
		23 February 2016

1. MRS JUSTICE PATTERSON:

Introduction

2. On 22 October 2015 an inspector, Jonathan King, appointed by the Secretary of State for Communities and Local Government ("the defendant"), allowed an appeal by Harlequin (Wistaston) Limited against the failure by the claimant to determine within the prescribed period an application for planning permission for 150 dwellings at Wistaston Green Road, Wistaston, Crewe, Cheshire. This is an application by the claimant under section 288 of the Town and Country Planning Act to challenge that decision. The decision letter was written after a three day public inquiry and a site visit.

Background

3. The land which was the subject of the planning application was within a Green Gap designated in the 2005 Crewe and Nantwich local plan. Policy NE.4, entitled "Green Gaps", identified three areas on the proposals map in open countryside as Green Gaps. One was called Willaston/Rope Gap, which included the appeal site.
4. At the public inquiry, the claimant acknowledged that it could not demonstrate five years' deliverable supply of housing land.
5. The inspector in his decision letter identified the main issues as including:

i. "The effect of the proposed development on:

2. The Green Gap and its objectives;

3. The countryside and the landscape character of the area".

6. The inspector concluded that, first:

i. "17. The site lies within an area designated in LP policy NE.4 as the Wistaston/Nantwich Green Gap, an area of mostly undeveloped land that lies between the built up areas of Crewe (at Wistaston) to the east and Nantwich to the west. The part of the Gap that includes the site is about 2.5 kilometres in width, very nearly its widest part. Further to the south it reduces to around 900 metres."

7. Second, that there would be an erosion of the Gap in conflict with the first criteria of NE.4, but that the degree of erosion would not be significant and its purposes would not be materially compromised; see decision letter paragraph 19 (hereafter I will refer to the decision letter as DL and then the number of the paragraph).
8. Third, that the development would be contrary to the second criteria of policy NE.4, but the adverse effects would be local in their degree of impact and would only be moderate. In view of the very limited contribution that the site makes to the wider landscape, the harm to the landscape would be slight; see DL39.
9. Fourth, the development could contribute to a cumulative greater impact, leading to "creeping encroachment", but each proposal would have to be considered on its own merits. If permitted, the proposal should not be taken as accepting or encouraging other proposals within the Green Gap; see DL24.
10. Fifth, the proposal was contrary to policy NE.4.
11. Sixth, NE.4 was not a relevant policy for the supply of housing and was up to date.
12. Seventh, the inspector concluded that the development would be sustainable and benefitted from a presumption in favour of development; see DL80.
13. As a result, the inspector granted planning permission.

The legal framework

14. This is not controversial. It has been restated recently in the case of Bloor Homes v Secretary of State for Communities and Local Government [2014] EWHC 754 at [19] as follows:

i. "19. The relevant law is not controversial. It comprises seven familiar principles:

(1) Decisions of the Secretary of State and his inspectors in appeals against the refusal of planning permission are to be construed in a reasonably flexible way. Decision letters are written principally for parties who know what the issues between them are and what evidence and argument has been deployed on those issues. An inspector does not need to 'rehearse every argument relating to each matter in every paragraph' (see the judgment of Forbes J in Seddon Properties v Secretary of State for the Environment [1981] 42 P. & C.R. 26, at p.28).

(2) The reasons for an appeal decision must be intelligible and adequate, enabling one to understand why the appeal was decided as it was and what conclusions were reached on the 'principal important controversial issues'. An inspector's reasoning must not give rise to a substantial doubt as to whether he went wrong in law, for example by misunderstanding a relevant policy or by failing to reach a rational decision on relevant grounds. But the reasons need refer only to the main issues in the dispute, not to every material consideration (see the speech of Lord Brown of Eaton-under-Heywood in South Bucks District Council and another v Porter (No. 2) [2004] 1 WLR 1953, at p.1964B-G).

(3) The weight to be attached to any material consideration and all matters of planning judgment are within the exclusive jurisdiction of the decision-maker. They are not for the court. A local planning authority determining an application for planning permission is free, 'provided that it does not lapse into Wednesbury irrationality' to give material considerations 'whatever weight [it] thinks fit or no weight at all' (see the speech of Lord Hoffmann in Tesco Stores Limited v Secretary of State for the Environment [1995] 1 WLR 759, at p.780F-H). And, essentially for that reason, an application under section 288 of the 1990 Act does not afford an opportunity for a review of the planning merits of an inspector's decision (see the judgment of Sullivan J, as he then was, in Newsmith v Secretary of State for Environment, Transport and the Regions [2001] EWHC Admin 74, at paragraph 6).

(4) Planning policies are not statutory or contractual provisions and should not be construed as if they were. The proper interpretation of planning policy is ultimately a matter of law for the court. The application of relevant policy is for the decision-maker. But statements of policy are to be interpreted objectively by the court in accordance with the language used and in its proper context. A failure properly to understand and apply relevant policy will constitute a failure to have regard to a material consideration, or will amount to having regard to an immaterial consideration (see the judgment of Lord Reed in Tesco Stores v Dundee City Council [2012] PTSR 983, at paragraphs 17 to 22).

(5) When it is suggested that an inspector has failed to grasp a relevant policy one must look at what he thought the important planning issues were and decide whether it appears from the way he dealt with them that he must have misunderstood the policy in question (see the judgment of Hoffmann LJ, as he then was, South Somerset District Council v Secretary of State for the Environment (1993) 66 P. & C.R. 80, at p.83E-H).

(6) Because it is reasonable to assume that national planning policy is familiar to the Secretary of State and his inspectors, the fact that a particular policy is not mentioned in the decision letter does not necessarily mean that it has been ignored (see, for example, the judgment of Lang J in Sea Land Power & Energy Limited v Secretary of State for Communities and Local Government [2012] EWHC 1419 (QB), at paragraph 58).

(7) Consistency in decision-making is important both to developers and local planning authorities, because it serves to maintain public confidence in the operation of the development control system. But it is not a principle of law that like cases must always be decided alike. An inspector must exercise his own judgment on this question, if it arises (see, for example, the judgment of Pill LJ in Fox Strategic Land and Property Ltd v Secretary of State for Communities and Local Government [2013] 1 P. & C.R. 6, at paragraphs 12 to 14, citing the judgment of Mann LJ in North Wiltshire District Council v Secretary of State for the Environment [1992] 65 P. & C.R. 137, at p.145)."

15. The issues
16. The claim has been made on five grounds:
17. one, that the inspector erred in law in his understanding of what was a "valued landscape";
18. two, that the inspector misapplied policy NE.4 in respect of alternative sites;
19. three, that the inspector misapplied policy NE.4 in respect of the impact on the Green Gap separation;
20. four, that the inspector's approach to the proposal's consistency with policy NE.4 was irrational; and
21. five, that the inspector misapplied the test under paragraph 14 of the NPPF.
22. At the hearing, the claimant did not pursue ground 2 and 3. I say nothing further about them and deal with the remaining grounds. I turn, then, to ground 1.
23. Did the inspector misunderstand the meaning of "valued landscape" within paragraph 109 of the NPPF?
24. The claimant contends that the inspector conflated the meaning of "valued" and "designated" landscapes in DL27. In so doing, the inspector misinterpreted and misunderstood the term "valued landscape". The claimant relies upon the case of Stroud District Council v Secretary of State for Communities and Local Government [2015] EWHC 488 where Ouseley J concluded that if an inspector had concluded that a landscape designation was the same as valued landscape, he would have fallen into error. That, it is submitted, is what the inspector did here. The inspector was required to ignore whether the landscape was designated or not.
25. Secondly, the claimant submits that its case at the public inquiry was that the site had demonstrable physical attributes, namely the brook, land form and locational advantages. The inspector was therefore under an obligation to deal with the claimant's case in those aspects.
26. Thirdly, because the inspector referred to the designation that gave rise to a real doubt as to whether he had misunderstood and applied the meaning of "valued landscape" in the right way.
27. Both defendants submit that there was no misinterpretation, the decision letter should be read as addressed to an informed readership.
28. Discussion and conclusions
29. The concept of valued landscapes appears in paragraph 109 of the NPPF:

i. "109. The planning system should contribute to and enhance the natural and local environment by:

Protecting and enhancing valued landscapes, geological conservation interests and soils;

Recognising the wider benefits of ecosystem services;

Minimising impacts on biodiversity and providing net gains in biodiversity where possible, contributing to the Government's commitment to halt the overall decline in biodiversity, including by establishing coherent ecological networks that are more resilient to current and future pressures;

Preventing both new and existing development from contributing to or being put at unacceptable risk from, or being adversely affected by unacceptable levels of soil, air, water or noise pollution or land instability; and

Remediating and mitigating despoiled, degraded, derelict, contaminated and unstable land, where appropriate."

30. Both parties at the inquiry had referred to the case of Stroud. That was a case which involved residential development close to but outside the boundaries of an Area of Outstanding Natural Beauty. The decision letter there was challenged on four grounds, the first of which was the inspector's approach to valued landscapes. Ouseley J in his judgment said at [13]:

i. "13. It is important to understand what the issue at the Inquiry actually was. It was not primarily about the definition of valued landscape but about the evidential basis upon which this land could be concluded to have demonstrable physical attributes. Nonetheless, it is contended that the Inspector erred in paragraph 18 because he appears to have equiparated valued landscape with designated landscape. There is no question but that this land has no landscape designation. It does not rank even within the landscape designation that is designed to protect the boundaries of the AONB and apparently its setting, which is NE9, a policy derived from the Structure Plan. It is not a Local Green Space within policies 75 and 76 of the NPPF. It has no designation at all. The Inspector, if he had concluded, however, that designation was the same as valued landscape, would have fallen into error. The NPPF is clear: that designation is used when designation is meant and valued is used when valued is meant and the two words are not the same."

31. In the decision letter before the court, the inspector dealt with this matter at [27] and [28]:

i. "27. Policies NE.2/RES.5 do not include any criteria relating to the protection of landscape character, though the supporting text of the former refers to keeping development in the open countryside to a minimum in order to protect its character and amenity. This reflects the core planning principle of the NPPF that the intrinsic character and beauty of the countryside should be recognised, with the planning system contributing to and enhancing the natural and local environment. But the NPPF does not seek to protect all countryside from development: it concentrates on the protection of 'valued' and 'distinctive' landscapes, for example, those subject to specific designations; and seeks to encourage development on previously developed land. This site is not subject to any specific landscape designations; and though it is obviously valued by local residents, I do not consider that it falls within the category of a 'valued landscape' as I understand the NPPF to use the phrase. By reference to the range of factors set out in the Guidelines for Landscape and Visual Impact Assessment (The Landscape Institute & Institute of Environmental Management and Assessment), including landscape quality (condition) scenic quality and perceptual aspects, it does not rank highly in my view.

ii. 28. I agree with the appellant's assessment that, as a starting point, the site self has a 'low' landscape value and 'ordinary' quality, with the visual quality being 'moderate'. It is undeveloped agricultural land, and it possesses no special qualities that would elevate its importance. It is affected by other urban influences such as a large above ground sewage pipe, pylons and overhead wires. I agree that it is reasonable to conclude that the existing visual quality is no higher than 'moderate'. That notwithstanding, it is clear that the proposed development would radically affect the character of the site itself, as the fields would largely be replaced by housing of suburban character."

32. It is perfectly clear in my judgment that the inspector understood the difference between "valued" and "designated" landscapes. He was correct to record, as he did, that the site had no landscape designation. That was a matter of fact. He had to deal with policies within the development plan, NE.2 and RES.5, and whether they had any criterion for the protection of landscape character. He then went on to consider the policy in the NPPF, making the point which was that it did not seek to protect all countryside from development but rather those parts that were "valued". It encouraged development on previously developed land. That part is his summary of paragraph 109 of the NPPF. From that general policy, he then considered the specific position on the appeal side. As a matter of fact and background, as I have said, it had no landscape designation.
33. The inspector then went on to consider whether it was valued. The rest of DL27 and 28 set out the inspector's judgment on that. He dealt with matters of landscape quality, scenic quality and perceptual aspects against the factors set out in the Landscape Institute's guidance. He then went on in DL28 to carry out a more detailed appraisal. He recorded that he agreed with the appellant's assessment. It follows that he disagreed with the assessment put forward by the local planning authority, here the claimant, and rejected it. There was no obligation on him to do more.
34. His reasoning on the physical attribute of the land was exactly as had been set out in paragraph 13 of the judgment in Stroud before he was able to conclude, in the circumstances before him, that the land had no special quality. Because of that, he rejected the argument of the claimant that the site was valued landscape. His position was one of clear reasoning and was entirely justifiable on the cases that were put before him. It follows that this ground fails.
35. Ground 4: That the inspector's conclusions on policy NE.4 were irrational
36. The claimant contends that the inspector acted irrationally by reaching conclusions that the development would fail to promote the aims of the Green Gap and would be contrary to policy NE.4, but would not compromise the objectives of the policy; see DL78. The claimant accepts that there is a high threshold to establish an irrationality challenge, but submits that the inspector, at DL23 and DL78, reached inconsistent findings of fact in his conclusions on NE.4, in that the impact of the scheme was not substantial and that it would not compromise the objectives of the policy. In DL23, the inspector had determined that the scheme would fail to promote the aims of the policy so as to be in conflict with it, but on the other hand determined that the scheme would not compromise the policy's objectives. The objectives and aims are interchangeable and so there is an internal inconsistency within the decision letter.
37. Both defendants submit that there is no inconsistency, and that the findings made by the inspector are entirely consistent.
38. Discussion and conclusions
39. The main issue, agreed at the public inquiry, was that of the effect of the development on the Green Gap and its objectives; see DL13 and 14. The claimant's closing submissions at paragraphs 9 and 16 referred to that as being the decisive consideration. The relevant paragraphs in the decision letter are 19, 23, 40 and 78:

i. "19. So far as the first criterion of the policy is concerned, the construction of up to 150 dwellings on 7.6 hectares of land would not be an inconsiderable development; and the development would clearly physically erode the Gap by the width of the site: approximately 200 metres. Policy NE.4 does not allow for any flexibility in the degree of erosion, therefore I must conclude that the development would be contrary to this criterion. That said, 200 metres represents a fairly small proportion of the overall width of the Gap. Having regard to the purposes of the policy, the settlements would remain physically defined and separate, to an extent greater than in other parts of the Gap, albeit that the separation distance would be slightly reduced. In that context, I do not consider that the Gap would be eroded significantly or its purposes materially compromised. In my view the significance of the site in terms of the contribution that it makes to the effective functioning of the Gap as a means of separation is fairly small.

ii. ...

iii. 23. The NPPF does not provide any direct basis for Green Gap policies, as it does, for example for the Green Belt. Nonetheless, the definition and separation of existing communities and preventing settlements from merging by means of the Green Gap policy arguably contributes to the social dimension of sustainability, in that it could contribute to supporting (in the words of the NPPF) strong, vibrant and healthy communities. It also contributes to the social and environmental dimensions by maintaining a high quality rural environment. I am in no doubt that the policy has significant local support. By eroding the extent of the Green Gap, the proposed development fails to promote its aims. However, as the harm to those aims and to sustainability would not be substantial, I conclude that the development would be only marginally unsustainable by reference to this issue.

iv. ...

v. 40. The maintenance and protection of the rural landscape fulfils the environmental role of sustainability. By reducing the area of undeveloped countryside, the proposed development fails to promote that aspect. However, as in practice the site makes little contribution to the visual character of the landscape other than locally, the harm to those aims would be insignificant.

vi. ...

vii. 78. Though policy NE.4 would be breached, I have concluded that, while the proposed development would physically erode the Green Gap and would adversely affect the visual character of the landscape, the impact would be slight by reference to both factors and would not compromise the objectives of the policy or the NPPF. The Green Gap would remain effective and the effect on the landscape character of the countryside would be local and not very significant. With respect to policy NE.12, the loss of BMV land has been agreed as not being a substantial factor. Set against this harm is the provision of a significant quantity of market and affordable housing. That is a very weighty material consideration. I conclude as a matter of planning judgment that it indicates that the determination of the appeal should be other than in accordance with the development plan."

40. It is clear that the inspector there was saying that the development would erode the Green Gap.
41. Policy NE.4 reads as follows:

i. "NE.4 GREEN GAPS

ii. The following areas defined on the Proposals Map are Green Gaps in the open countryside:

iii. WILLASTON/ROPE GAP;

iv. HASLINGTON/CREWE GAP;

v. SHAVINGTON/WESTON/CREWE GAP;

vi. Within these areas, which are also subject to policy NE.2, approval will not be given for the construction of new buildings or the change of use of existing buildings or land which would result in erosion of the physical gaps between built up areas; or Adversely affect the visual character of the landscape. Exceptions to this policy will only be considered where it can be demonstrated that no suitable alternative location is available."

42. Its supporting text reads:

i. "Justification. These areas need additional protection in order to maintain the definition and separation of existing communities, and to indicate support for the longer term objective of preventing Crewe, Willaston, Wistaston, Nantwich, Haslington and Shavington from merging into one another. The bulking of principal traffic routes through the narrow gaps between the settlements has the potential to increase pressure for new development up to and along those routes. That pressure is already manifest in the Green Gaps, justifying a stricter level of development control to ensure continuing separation of the settlements."

43. Because the terms of the policy were strict, the inspector found that there was a breach of it. It is not at all uncommon to refer not only to the terms of the policy but to its objectives. That is precisely what both parties had asked the inspector to do at the public inquiry. Here, the inspector found that the terms of NE.4 were breached, but that the policy's aims and objectives were not compromised. By eroding the Gap, the development failed against the words of the policy and did not promote its aims, but, in context, the harm was slight. As a result, the inspector found that the objectives/purposes of policy NE.4 were not compromised.
44. There is nothing irrational or unusual in finding what might be termed a technical breach of the terms of a policy, but then considering the aims of the policy and its objectives and how those were affected. That is the exercise that the inspector conducted here. It cannot be said that his findings were such as to be either inconsistent or irrational. It follows, therefore, that this ground fails also.
45. Ground 5: Did the inspector misapply the test under paragraph 14 of the NPPF
46. This is an additional ground to those in the statement of facts and grounds. The claimant candidly conceded that it came to it when drafting the skeleton argument, but contends that an amendment should be permitted because there is no adverse impact on either defendant, both of which have been able to deal with the matter raised.
47. The defendants do not object as such, but contend that the amendment is for the court to consider as to whether it is appropriate to allow the claimant to add it in at this stage.
48. In general terms, the addition of new grounds at such a late stage in a challenge is something to be deprecated. Rules of the court are there to provide a clear framework for how a case should proceed. Cases would become unworkable if parties, when drafting their skeleton arguments, were struck with a new and what they considered to be a bright argument which would always be allowed by way of amendment. It will depend on the individual circumstances whether it is right and just to allow a late amendment. Notwithstanding that, I take into account that, in the circumstances here, permitting amendment to allow the ground would cause no prejudice to either of the defendants and in those circumstances, in my judgment it is right to allow it.
49. I move, therefore, to consider the substance of the ground.
50. The claimant submits that the inspector found the scheme to be in conflict with policies NE.4 and NE.2. He found also that NE.4 was not a relevant policy for the supply of housing (DL72) but that NE.2 was (DL68). Accordingly, applying NPPF paragraph 49, policy NE.2 was out of date, but policy NE.4 was not. The claimant submits that in those circumstances the second defendant should not have enjoyed the benefit of the weighted planning balance under paragraph 14 of the NPPF. That, it is submitted, involves a holistic consideration of a development proposal and comes into play where relevant policies are out of date. As NE.4 was not out of date, the balance in favour of planning permission should not have applied.
51. In the claimant's written argument, the claimant contended that to apply the presumption in favour where only some of the relevant policies were out of date created a false incentive to local planning authorities, where they would be encouraged to not raise conflict with a policy which is a relevant policy for the supply of housing. It is not right, in those circumstances,that a developer is in a more beneficial position because their scheme is found to be in conflict with policies in addition to NE.4. The claimant relies in particular on R (Wynn-Williams) v Secretary of State for Communities and Local Government [2014] EWHC 3374 at [35]:

i. "35. Examining the relevant part of paragraph 14 of the NPPF, which is the core of the claimant's case, it requires the policy presumption to be applied either where development proposals accord with the Development Plan or where there are relevant policies and they are out of date unless their adverse effects significantly outweigh the benefits assessed against the policies in the NPPF and in other limited circumstances. It is therefore clear that the starting point in the NPPF is the same as that in section 38(6), namely whether the development proposals accord with the Development Plan. An answer to that question is a necessity if paragraph 14 is to be applied properly. If the proposals are not in accordance with the Development Plan, the NPPF clearly requires that consideration be given to whether the relevant policies are out of date, there being no automatic presumption applying in favour of the development unless the second part of paragraph 14 is met. Paragraph 14 is therefore not of substantive effect to the extent that the process to be followed before the presumption applies requires the exercise of judgment as to whether relevant policies with which the proposals conflict are 'out of date'. In considering whether policies are 'out of date', that requires consideration of inconsistency as paragraphs 211 and 215 make clear."

52. Alternatively, the claimant submits that the inspector was wrong to conduct a separate planning balance in respect of the different policies in the development plan, and failed to explain how the separate balances joined together.
53. The inspector in DL13 had set out the main issues in the case. That reads:

i. "13.The main issues in this case are:

ii. The effect of the proposed development on:

1. The Green Gap and its objectives;

2. The countryside and the landscape character of the area;

3. The supply of Best and Most Versatile Agricultural Land;

4. Highway safety and accessibility by means other than the private car; and

5. Having regard to the foregoing, and all other relevant aspects of the economic, social and environmental dimensions of sustainability, whether the proposed development would be sustainable;

iii. And against that background:

iv. 6.

(a) whether the development plan is absent, silent or its relevant policies are out of date;

(b) if so, whether any adverse impacts of granting permission for the proposed development would significantly and demonstrably outweigh the benefits, when assessed against the policies in the National Planning Policy Framework taken as a whole; and

(c) if not, whether the proposed development would accord with the development plan. If it is in accordance, whether other material considerations indicate that it should be refused; and, if it conflicts, whether other material considerations indicate that it should be permitted."

54. The claimant emphasises point 6 within DL13 and contends that, having determined under 6(a) whether the policy in the development plan is out of date, the inspector had to proceed down either (b) or (c), depending on what his determination under (a) was. (b) and (c) were alternative approaches. The inspector in DL75 summarised his prior findings and found that policy NE.2 was out of date, but policy NE.4 was not. The consequences were considered in DL78 and 79, which was the wrong approach. The correct approach is a holistic one so that section 38(6) of the Planning and Compulsory Purchase Act takes its place in the decision making process, here, as an adverse impact.
55. The defendant submits that the claimant's interpretation of paragraph 14 is wrong, both in its written and oral arguments. The phrase in paragraph 14 of the NPPF is "relevant policies are out of date". That phrase should be given its normal and natural meaning. Nothing in the case of Wynn-Williams (supra) says otherwise.
56. The second part of paragraph 14 of the NPPF is intended to provide a remedy where an out of date development plan would otherwise stand in the way of acceptable development. That is a matter of expert planning judgment in each case for the decision maker to conclude whether the relevant policies are out of date so that paragraph 14 is engaged. Here, the inspector found policies NE.2 and NE.12 to be out of date: see DL41 and 68. He found policy RES.5 also to be out of date. The inspector then applied the test in paragraph 14 as a supplement to the statutory question in section 38(6) of the P&CPA.
57. The inspector's starting point was that, as the development was contrary to the up to date provisions of the development plan, there was a presumption in favour of refusal; see DL76. However, other material considerations indicated that the determination should be other than in accordance with the development plan; see DL78. The inspector considered the test in paragraph 14 of the NPPF and found it to be satisfied so that it weighed additionally in favour of the grant of planning permission.
58. This argument in general within ground 5 was not an argument which had been run at the public inquiry. The claimant's argument in opening was that NPPF 14 did not apply because the development plan was not silent, absent or out of date. Similarly, in closing at the public inquiry, the claimant's emphasis was on the question of whether the development plan was out of date. As what is being run now is a different argument, the claimant should not be allowed to run it.
59. The inspector found that only NE.4 remained relevant and up to date. The proposal was in breach of that policy, and the inspector, therefore, was entitled to start with a presumption in favour of refusal. In DL8, 79 and 80, the inspector was carrying out his balancing exercise, and it was open to him to judge how best to conduct that exercise. The inspector here was alive to all the relevant matters.
60. The second defendant adopts the submissions of the first defendant and refers to the structure of the decision letter, where issue 5 was whether the proposed development would be sustainable. In DL75, the inspector had engaged with NPPF 14, and concluded, as a matter of planning judgment, that the development was. DL 78 and 79 set out the planning balance and cannot be seen in isolation. DL80 provides the answer to the claimant's ground and shows that the inspector acted lawfully.
61. Discussion and conclusions
62. Before considering the actual decision letter, it is worthwhile -- given the way the arguments have ranged before me -- considering the interrelationship of statutory provisions and paragraph 14 of the NPPF. That was considered in Bloor Homes (supra), where Lindblom J, as he then was, said:

i. "42. This ground requires the court to consider the meaning of government policy in paragraph 14 of the NPPF, which explains how the 'presumption in favour of sustainable development' is to be applied, both in plan-making and in decision-taking.

ii. ………

iii. 46. All of this, one has to remember, sits within the statutory framework for the making of decisions on applications for planning permission, in which those decisions must be made in accordance with the development plan unless material considerations indicate otherwise. Government policy in the NPPF does not, and could not, modify that statutory framework, but operates within it -- as paragraph 12 of the NPPF acknowledges. The Government has taken the opportunity in the NPPF to confirm its commitment to a system of development control decision-making that is 'genuinely plan-led' (paragraph 17). But in any event, within the statutory framework, the status of policy in the NPPF, including the policy for decision-making in paragraph 14, is that of a material consideration outside the development plan. It is for the decision-maker to decide what weight should be given to the policy in paragraph 14 if it applies to the case in hand. Because it is government policy it is likely to command significant weight when it has to be taken into account. But the court will not intervene unless the weight given to it can be said to be unreasonable in the Wednesbury sense."

63. I agree with those words, which clearly state the relationship of section 38(6) and paragraph 14 of the NPPF. Further, an inspector, in balancing the various factors which are material in his or her decision making process, is under no prescription, provided he has properly understood the issues and has not misunderstood the meaning of policy and has taken into account all material considerations, as to how to undertake that process. It is a matter for his or her individual judgment. To hold otherwise would be to place an artificial straitjacket on an inspector in what can often be a complex decision making process. An inspector should be free to articulate that process howsoever he or she chooses, provided always that he or she does so in a way which is lawful.
64. I echo, therefore, the words of Mr David Elvin QC sitting as a Deputy High Court Judge in the case of Wynn-Williams at [39].
65. Turning to the position here, the key paragraphs are DL 75 to 80 inclusive. They read:

i. "75. Before embarking on the final balancing exercise, I shall recap on my findings thus far:

(a) the development is on balance sustainable and thereby benefits from the presumption in favour. In reaching this conclusion I have had regard to all matters addressed under my issues 1-5;

(b) the development is contrary to policy NE.2, which is a relevant policy for the supply of housing, but is out of date. Permission should be granted unless any adverse impacts of doing so would significantly and demonstrably outweigh the benefits when assessed against the policies of the framework as a whole;

(c) the development is contrary to policies NE.4 and NE.12, which are not relevant for the supply of housing. Policy NE.4 is not out of date and carries full development plan weight. Development that conflicts with it should be refused unless other material considerations indicate otherwise. Policy NE.12 is not fully in accordance with the NPPF and should be given weight only insofar as it complies; and

(d) the purpose of policy NE.2 of protecting the countryside is a material consideration notwithstanding that it is out of date as a relevant policy for the supply of housing. But this is a consideration that should in any event be taken into account under policy NE.4.

ii. 76. My starting point should be the development plan insofar as it is up to date: ie policy NE.4 in respect of which the presumption in this case is for refusal. The principal argument on the other side of the balance is the provision of about 150 market and affordable homes in the context of a lack of a five year supply of available housing land. That is clearly a benefit and a weighty consideration -- one which the council's planning witness agreed should be given 'maximum' weight.

iii. 77. But it is not a consideration which in every case must outweigh policy. I have in mind the Secretary of State's recent (March 2015) decision in respect of an appeal at Audlem Road/Broad Lane, Stapeley, in which he concluded that, although the proposal would represent sustainable development in terms of providing new housing and supporting economic growth, it would fail to do so in terms of being the most effective way of improving the economic, social and environmental conditions of the wider area. But the development in that case was significantly different, including a local centre and employment development in addition to housing. Moreover, the Secretary of State considered the proposal to represent a piecemeal approach in the interim period before the housing land supply requirement have been finalised through the emerging local plan. The council does not argue by reference to prematurity with respect to the present case.

iv. 78. Though policy NE.4 would be breached, I have concluded that, while the proposed development would physically erode the Green Gap and would adversely affect the visual character of the landscape, the impact would be slight by reference to both factors and would not compromise the objectives of the policy or the NPPF. The Green Gap would remain effective and the effect on the landscape character of the countryside would be local and not very significant. With respect to policy NE.12, the loss of BMV land has been agreed as not being a substantial factor. Set against this harm is the provision of a significant quantity of market and affordable housing. That is a very weighty material consideration. I conclude as a matter of planning judgment that it indicates that the determination of the appeal should be other than in accordance with the development plan.

v. 79. With respect to policy NE.2, insofar as is remains relevant, I conclude that the harm to the countryside would not significantly and demonstrably outweigh the benefits of the development, principally the provision the housing [sic]. On the basis of its acceptance that the policy is out of date in terms of its geographical extent, the council acknowledges that the boundaries of the area designated as countryside may need to 'flex' in some locations to provide housing land requirements. But it concludes that the appeal site is not one such location due to the impact of the development on the intrinsic value of the open countryside and the harm to the Green Gap. I consider that this approach is not consistent with the NPPF, in that where relevant policy for the supply of housing is out of date, permission should be granted, subject to the balancing provisos of the framework.

vi. 80. I have concluded that the proposed development would be sustainable. In reaching that conclusion, I took into account the same matters as in the foregoing balancing exercises. It is important to ensure that these considerations should not be 'double counted', thereby overemphasising the weight of considerations supporting the development. Nonetheless, I would not have reached my conclusions in respect of the development plan unless I was certain that the development could be sustainable and thereby benefit from the presumption in favour."

66. In my judgment, it was entirely open to the inspector to approach the task before him as he did. He had regard to all relevant policies. He drew a distinction between those within the development plan as to whether they were up to date or not, and if so, what weight should attach to them. As part of that exercise, he was entitled to consider the policies in the development plan on an individual basis and put them into the balance or discount them, as he did with policies NE.2, NE.12 and RES.5. NE.4 was then evaluated as to its weight, given that the breach that the inspector had found was what might be termed technical. That was then weighed with other material considerations, such as the shortfall of housing and supply and sustainability, before coming to an overall conclusion.
67. In so doing, I agree with the submission made by the defendant that the inspector was exercising a holistic judgment. He correctly took section 38(6) and NPPF 14 together in arriving at an overall conclusion as to the acceptability of the development and in a way that was consistent with paragraph 46 in Bloor Homes. In short, he was carrying out the very exercise which the claimant submits he should have done. I find no error of law, therefore, in the exercise which the inspector undertook. For those reasons, ground 5 fails also.
68. This claim is dismissed.
69. MR HONEY: My Lady, I'm grateful. There is an application for the Secretary of State's costs.
70. MRS JUSTICE PATTERSON: Yes.
71. MR HONEY: A schedule has been provided.
72. MRS JUSTICE PATTERSON: It has, and I'm very sorry, Mr Honey, I've left it in my room. But I have seen it.
73. MR HONEY: It amounts, my Lady, to £6,281. I understood from an indication my learned friend gave earlier that there's no dispute about either the principle or the quantum, and in those circumstances I invite your Ladyship to make an order in that amount.
74. MRS JUSTICE PATTERSON: Right. Thank you very much, Mr Honey.
75. I do make an order that the claimant is to pay defendant's costs in the sum of £6,281.
76. MR HONEY: I'm grateful.
77. MRS JUSTICE PATTERSON: Thank you all very much.